Parental divorce

What is the best interest of the child in parental divorce

Convention on the rights of the child emphasises that children are born with fundamental rights and freedoms belonging to all human beings. Children’s physical and psychological immaturity, i.e. their developmental characteristics impose a need for special attention to their special rights to protection both in their everyday life and especially in some crisis situations the child and the family encounter, like e.g., parental divorce, domestic violence, child victim or witness of some form of abuse or neglect, or some other traumatic event.

There are four principles fundamental to all rights in the Convention on the rights of the child: non-discrimination, right to life and development in all aspects of life, the best interest of the child, and the freedom of opinion.

In this context we will deal with the principle of the best interest of the child during the parental divorce procedure. Clinical practice shows how big a challenge it is to take into account the care of the rights of the child on one hand and, on the other hand, the best interests of the child and need for protection.

We should consider the fact that talking about children, we cannot talk about a homogenous group, but rather about various developmental stages of children. Besides the developmental stages, children are different regarding their personal experience, their ability to cope with stressful situations and the amount of support available in their environment.

The principle of the best interest of the child means that the benefit of the child must be of primary importance in making all decisions or conducting procedures which have influence on the child or children as a group. This refers to decisions made by the government, administrative or legislative bodies as well as to decisions made by parents. In the determination of family legislature “the interest of the child is undefined, but definable legal term”, with the meaning of “requirement to recognise certain need of the child and to fulfil it in the best possible way.”

This principle should always have priority above other interests, and represent the direction in which every activity related to children should be monitored. We can see that in practice it is not always easy to accomplish and we also see that children’s wishes may not be in compliance with their benefit.

What are the basic needs of the child?

It is primarily the need for safe, stable and predictable environment in which the child feels s/he is loved, develops a sense of belonging, plays free and acquires experience interacting with peers.

In practice, it is not rare to see parents who are unable to recognise the child’s need for the other parent, not only for his/her physical presence. In such cases, one parent, overwhelmed with his/her emotional issues often sends the child a message (often unaware) that the other parent is inadequate, an enemy, that s/he is not good for the child, etc., so the child bears the burden of trying not to hurt the parent s/he lives with if s/he shows that need. Children want to be good to their parents, they want their parents to be proud of them and do not want to hurt them, and if the situation persists, they will give up on their own emotional needs and align with the parent’s emotional needs.

When children’s needs are satisfied, it is likely that they will acquire developmental tasks and that their competences will grow and develop.

The best interest of the child in the process of parental divorce:

  • Positive attitude of each parent towards the continuity of the ongoing relationship between the child and the other parent.
  • Active support to the relationship between the child and the other and to other parent’s participation in their child’s life.
  • Protection of the child from insights into conflicts between partners.
  • Availability of and support by both parents.
  • Freedom of relationship and opinion with both parents.
  • Cooperation between parents in important decisions about the child.
  • Protection of the child from the burdens of impaired parental relationship.

Written by:  Domagoj Štimac, M. D., psychiatrist, and Nikolina Škrlec, social worker